Records Retention by C&P Examiner

[Navy_Vet]

I have been told that a C&P examiner can retain only a limited amount of information.  What information may be retained and where do I find such a rule (e.g.: "M21-1 Adjudication Procedures Manual").

Thank you in advance.

[rentalguy1]

7 hours ago, broncovet said:

Great post, rental guy!  Now, If you will excuse me, I am going to have a slice of my much deserved humble pie.  

Nothing to be humble about. Most folks have never heard of it. It was the forerunner to the current DBQs.

[Vync]

@rentalguy1 That guide from 2002 does look familiar. Back then before they used DBQs, the VA used to use "C&P examination worksheets" which told the examiner what to check and then they would document the findings separately.

Here is an actual redacted copy of the dental exam worksheet that was in effect around late 1997:

The examiners would type up their findings using letters and numbers which contained the findings for each question. At the time, the VARO staff had a copy of that guide and could look up what was being asked so they could compare it against the laws, regs, and rating criteria. However, after filing a CUE on one of my exams from the late 90s, the VA denied and said they did not know what questions were being asked for each letter/number. Apparently, they were not able to locate the guide you posted. It's almost as bad as digging through old copies of the Federal Register to see how laws/regs read at certain points in time, except I could never locate this clinicians guide (thanks for linking to it).

With the advent of the modern DBQs, that changed a lot of things. I don't know which or any sections of the old clinicians guide may still be relevant. In general, based on my experience, the VARO's probably do not know either!

[Dustoff1970]

Vync that is very similar to the 98 C&P exam worksheet that the VA clinical psychologist used to evaluate me for renewal and increase of my PTSD that was then rated at 70% with TDIU.

I have a copy of that examiner's evaluation in my files and it was 9 to 10 pages in length.  That was good stuff then and better than today's chicken chit DBQs in my opinion.  Many private doctors will not fill out a lengthy DBQ that leaves very little room for their in depth comments, etc.  This is to the advantage of  the VBN.

[Vync]

@Dustoff1970 Yep. The old worksheets did offer greater flexibility to the examiners because they could use as much or little space as needed. They did have template files which they used to fill them out so if they needed more lines to answer questions, they were not constrained. But that second screenshot I posted, it's like either you have painful motion or you don't. Of course, the examiner took lots of handwritten notes which contained more favorable and easier to understand comments than made it into the report.

The newer DBQs do have checkboxes to make things easier, but if I were to take the heart exam to a civilian doc, they would be a bit lost. It is almost like the VA made them so "busy" as to require a special training course just to understand how fill them out.

[Navy_Vet]

I started something here!

The original LHI/OptumServe examiner was a "no-show" herself and the receptionist was deliberately insulting saying that I needed to see their psychologist who walked through the lobby while I was waiting so I walked out 40 minutes after the scheduled examination.  I was rescheduled with a private sector physician and walked out when I was told that the examination was conditioned on filling out his new patient forms, I started to fill them out and became angry that I was being asked for my entire health history.  LHI reported me as a "no-show" even though I complained to them and I provided an unsworn statement (28 U.S.C. § 1746(2)) to VA, an equivalent to a notarized statement under and only relevant to federal law, as to the circumstances with a copy of the forms and the fact that I appeared timely for the examination and VA still accepted LHI's no-show assertion without making its own determination pursuant to 38 CFR 3.655 and the BVA ALJ chastised me for "my" behavior implying I had to tolerate any bad behavior experienced relevant to a C&P examination making a claim determination based on the record finding no good cause to exist while strictly interpreting the law even though the regulation indicates that the reasons given are NOT exhaustive.  My lawyer at Bergmann & Moore tells me that we can't pursue the fact that VA couldn't have provided permission to this private M.D. to demand my health information. I assert that I was NEVER informed that I had to comply with such requests for irrelevant information to be archived at the examination site by the examiner.  I assert that VA regulations make the duty to assist, C&P examinations, unconditional after a substantially complete claim is submitted.  38 C.F.R. 21.1032.  B&M puts me at the mercy of a very biased BVA when it entered a JMR (joint remand motion) based in large part on the fact that BVA failed to consider my argument that VA had (mis)diagnosed me with three (3) major personality disorders (in a 12-month period) that affected my attendance.  NOT one (1) diagnosis substantially meets DSM IV or DSM 5!

The above regards three (3) remaining claims first submitted 08-15-2017 that have been bouncing back and forth from RO to BVA and back because RO fails to carry out the remand order completely.  An examination for a more recent claim (07-15-2023) is where I was told that VA only allows an examiner to keep a very limited amount of information (and to write down all information given).  Strangely this was a second examination for the same claimed disability with another clinician in the same medical practice.

Missing from the record before CAVC are ALL of the instructions from RO to the examiner for ALL of the examinations.

Edited December 22, 2023 by Navy_Vet

[broncovet]

Bergman and Moore is a very competent law firm, and they have read your file while we have not.  

Further, you have indicated that you have made significant progress with a JMR, which is a huge deal.  

You see, this enables you to submit new and relevant evidence and, if awarded, will enable an effective date back

to the beginning of the appeal period.  

Among attorney's who represent Veterans, the following is well known.

Pretty much, its rare for the CAVC to grant a reversal (win).  Much, much more common is a remand, and, with new evidence, 

the Board can then grant.  Whether or not we like this procedure, its pretty much how benefits get granted at the CAVC most of the time.  I can speak this with experience.  My law firm "won" a remand, and I submitted an IMO, and, suprise, I was granted my full benefits at the bva.  

Here is the good part, for me:  EAJA paid my law fees at the CAVC.  My law firm "does not represent" Veterans at 

the BVA, but he told me what I needed to win:  An IMO with New evidence under 38 cfr 3.156 b.  He further stated I did not need a law firm at the board, so I paid zero legal fees, and kept 100 percent of my benefits, and eaja paid all the cavc legal fees. 

It did not get any better than that.  Not only did I have the benefit of a law firm, but I paid zero.  The law firm even recommended a great person to do an imo that cost me less than 500 dollars, and worked perfectly.   

Further, I have been on hadit since 2007, and similar things have happened to multiple Veterans over the years.  

Therefore, my advice is to follow your law firms advice, and dont do anything to sabatoge your own claim.  At least once or twice

Veterans thought they knew more about the law than their attorney's, and most found out they did not know as much as they thought....some found this out the hard way.  

There are always exceptions.  For examples, attorneys, like the rest of us, sometimes get addicted to drugs or alcohol, 

or have other issues, where they make mistakes like not filing documents timely.  Yes, sometimes we have to fire our

attorneys.  Its a decision we should not take lightly.   Unless there is a compelling reason, I dont recommend firing

your attorney.  

Remember, you hired your attorney for his legal expertise.  If you had this, you would not need to hire him.  So, it should not 

suprise you that your attorney does not do everything "you think" he/she should do.  Mostly, you need to put those differences of opinions aside, and trust your initial judgement when you hired him/her.  

Sometimes, Vets get angry with their attorney because they expect some "hand holding" and/or legal instruction that the 

attorney is unwilling to provide.  If you want counseling,  see a counselor, if you want legal instruction, go to law school, its unreasonable to expect your attorney to be your counselor and legal instrutor as well as win your claim.  Your attorney could

probably teach law school, but he chose instead to represent you in your claim, and you did not ask him to teach you, but to win. 

I get it.  Sometimes I want someone to tell me its gonna be ok...and I need counseling.

 

That's when I speak to my wife, who is a wonderful counselor.